{
  "id": 1730835,
  "name": "Morton v. Yell",
  "name_abbreviation": "Morton v. Yell",
  "decision_date": "1965-03-22",
  "docket_number": "5-3522",
  "first_page": "195",
  "last_page": "197",
  "citations": [
    {
      "type": "official",
      "cite": "239 Ark. 195"
    },
    {
      "type": "parallel",
      "cite": "388 S.W.2d 88"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [
    {
      "cite": "213 Ark. 379",
      "category": "reporters:state",
      "reporter": "Ark.",
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      "weight": 2,
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    {
      "cite": "226 Ark. 1016",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
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      "weight": 2,
      "opinion_index": 0,
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    {
      "cite": "152 S.W. 155",
      "category": "reporters:state_regional",
      "reporter": "S.W.",
      "opinion_index": 0
    },
    {
      "cite": "105 Ark. 494",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1347024
      ],
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      "case_paths": [
        "/ark/105/0494-01"
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  "analysis": {
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  "last_updated": "2023-07-14T18:55:14.179779+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Morton v. Yell"
    ],
    "opinions": [
      {
        "text": "George Eose Smith, J.\nJ. L. Jones died testate in April, 1963, leaving his homestead in Prairie Grove to the trustees of two cemeteries. Ten months after Jones\u2019s will was probated the appellants, Ken Morton and his wife, filed this suit in equity against the cemetery trustees and the executor of Jones\u2019s will, asking for specific performance of an oral contract, made in 1960, by which Jones had agreed to leave the property in question to the Mortons in return for their taking care of him for the rest of his life. This appeal is from a decree finding that the Mortons failed to prove their case by clear and convincing evidence.\nThe cemetery trustees first contend that the Mortons are barred by the statute of nonclaim, having failed to assert any cause of action against the executor until more than six months after the publication of the notice to creditors. Ark. Stat. Ann. \u00a7 62-2601 (Supp. 1963). This contention was rejected in Fred v. Asbury, 105 Ark. 494, 152 S.W. 155, where we said: \u201cThe statute of nonclaim is urged as a bar to the relief sought. This statute provides that all claims against estates of deceased persons shall be barred unless they are properly authenticated and presented to the executor or administrator within one year after the grant of letters; but this is not a proceeding to enforce a claim or demand against the estate of Jacob Fred, deceased, but is one to determine the rights of the parties to this suit to the property in question. The statute of nonclaim does not refer to claims of title or for the recovery of property for the reason that claims of such a character can not in any just sense be said to be claims against the estate of the deceased.\u201d\nIn this respect the law has not been changed by the Probate Code, which provides: \u201c A valid agreement made by a testator to convey property devised in a will previously made shall not revoke the previous devise, but such property shall pass by the will subject to the same remedies on the agreement against the devisee as might have been enforced against the decedent if he had survived.\u201d Ark. Stat. Ann. \u00a7 60-412 (Supp. 1963). Under this statute the appellants\u2019 remedy is not against the estate but against the devisees. A court of equity is the proper foi\u2019um for their suit for specific performance. Merrell v. Smith, 226 Ark. 1016, 295 S.W. 2d 624.\nOn the merits the Mortons insist that the chancellor erred in holding that their testimony about the oral agreement was inadmissible under the dead man\u2019s statute, because, they argue, the executor is not a necessary party to the case. We need not explore this connection, for we think that even without this testimony the making and performance, of the contract were established by clear and convincing proof.\nThe Mortons called the executor as their own witness, as they were entitled to do under the dead man\u2019s statute; for if he was in fact a necessary party his testimony was rendered admissible by the fact that he was called as a witness by his adversary. Ark. Constitution, Schedule, \u00a7 2. The executor had long been a friend of the decedent and does not appear to have had the slightest reason for misrepresenting the facts. He testified that Jones told him that he had decided to give the Mortons the property \u201cto take care of him at home.\u201d The executor also identified a codicil, signed by the testator, in which he directed that the home property be conveyed to the Montons \u201cfor their taking care of me in my declining days.\u201d The codicil was ineffective, because there were no attesting witnesses, but it was admissible as a statement against interest made by the appellees \u2019 predecessor in title at a time when he was the owner of the land. Pitts v. Pitts, 213 Ark. 379, 210 S.W. 2d 502.\nThere is an abundance of disinterested proof that the Mortons did take care of Jones in the last years of his life. Inasmuch as the Mortons were not related to Jones and had no duty to look after him the fact that they did faithfully care for him is a circumstance strongly corroborating the existence of the oral agreement. The defendants below offered no testimony at all; so the plaintiffs\u2019 persuasive evidence stands uncontradicted. We consider it sufficiently clear and convincing to satisfy the Mortons\u2019 burden of proof.\nReversed.",
        "type": "majority",
        "author": "George Eose Smith, J."
      }
    ],
    "attorneys": [
      "Rex W. Perkins and Walter R. Niblock for appellant.",
      "Thomas Pearson and James R. Hale, for appellee."
    ],
    "corrections": "",
    "head_matter": "Morton v. Yell\n5-3522\n388 S. W. 2d 88\nOpinion Delivered March 22, 1965.\nRex W. Perkins and Walter R. Niblock for appellant.\nThomas Pearson and James R. Hale, for appellee."
  },
  "file_name": "0195-01",
  "first_page_order": 223,
  "last_page_order": 225
}